Why in news?
A police officer, as Special Executive Magistrate, sent two protest leaders to custody, raising concerns over preventive powers. Lawyers have questioned whether police officers holding magisterial powers can fairly judge cases arising from police action, and whether these preventive powers are being used to curb lawful dissent.
UPSC Relevance
Prelims: Classes of criminal courts under BNSS; Executive vs Judicial Magistrates; Section 163 BNSS (old Section 144 CrPC); Article 50; Articles 19 and 22.
Mains GS2: Separation of powers between organs; structure and functioning of the judiciary; fundamental rights – freedom of speech and assembly.
Constitutional framework
- Article 50: Principle of separation of power – Directs the State to separate the judiciary from the executive in public services. The CrPC of 1973 largely did this by taking trial powers away from Executive Magistrates.
- Article 19(1)(a) and (b): Freedom of speech and the right to assemble peacefully without arms, subject to reasonable restrictions for public order under Articles 19(2) and 19(3).
- Articles 21 and 22: No deprivation of liberty except by fair, just and reasonable procedure; safeguards on arrest and detention.
Who are Executive Magistrates?
- Meaning: Officers of the executive (usually from the revenue administration) who are given limited magisterial powers to maintain public order and peace. They do not try criminal cases.
- Section 14, BNSS: The State government appoints Executive Magistrates in every district – one as the District Magistrate (DM), and others as Additional DM and Sub-Divisional Magistrates (SDMs).
- Section 15, BNSS – Special Executive Magistrates: The State can appoint SEMs for particular areas or functions for a fixed period. BNSS specifically allows a police officer of at least Superintendent of Police rank, or equivalent, to be appointed as SEM.
- Police Commissionerate link: In cities with a commissionerate system (like Delhi, Mumbai), the Commissioner and senior police officers are given executive magistrate powers, so the police both maintain order and exercise preventive magisterial powers.
Classes of criminal courts under BNSS (Section 6)
Court of Session (Highest in huerarchy at District) → Judicial Magistrate of First Class → Judicial Magistrate of Second Class (lowest in hierarchy) → Executive Magistrates. BNSS has removed the separate category of Metropolitan Magistrates found in the CrPC.
Executive Magistrate vs Judicial Magistrate
| Basis | Executive Magistrate (EM) | Judicial Magistrate (JM) |
| Nature of work | Preventive and administrative – maintain peace and public order | Judicial – deals with criminal cases and trials |
| Controlled by | District Magistrate and State government | Chief Judicial Magistrate, Sessions Judge and High Court |
| Trial and conviction | Cannot conduct trials or convict anyone | Conducts trials and can impose sentences within legal limits |
| Who they are | Civil servants (and, as SEMs, even police officers) | Members of the judicial service, trained in law |
| Typical powers | Prohibitory orders, binding over for peace, dispersing assemblies | Taking cognizance, bail, remand, trial and sentencing |
The debate – police officers as SEMs
Arguments in favour
- Quick response: In big cities, law and order situations need fast decisions; police officers are on the spot.
- Single accountability: Under the commissionerate system, one authority is responsible for order, avoiding delays between the DM and the police.
- Reduces burden: Revenue officers in metros are already overloaded.
Arguments against
- Judge in own cause: The same police force arrests a person and then, through its own officer, decides on custody. This goes against the principle of natural justice – no one should be a judge in their own cause.
- Weakens Article 50: Giving quasi-judicial powers to the police undoes the separation of judiciary and executive that the CrPC 1973 achieved.
- Lack of legal training: Police officers are not trained to weigh evidence or apply the law on liberty the way judicial officers are.
- Chilling effect on dissent: Lawyers argue that a “basket” of provisions – BNSS Sections 126, 135, 140, 141, 163, 170 and 172, along with State police laws and standing orders – lets police prevent protests routinely, making Article 19(1) a mockery.
- Weak safeguards: Preventive orders are often passed without recorded reasons, proper hearing or timely review, and harsh bond conditions keep people in custody.
Way forward
- Separate roles: Custody and remand decisions should rest with Judicial Magistrates; police SEMs, if needed, should be limited to purely preventive orders.
- Reasoned orders: Every preventive order must record specific reasons, as required by Anuradha Bhasin, and be published.
- Time-bound review: Quick judicial review of preventive detention and bond orders by a Judicial Magistrate or Sessions Court.
- Clear guidelines on protests: Designated, accessible protest sites with transparent permission rules, as directed in Mazdoor Kisan Shakti Sangathan.
- Police reforms: Implement Prakash Singh (2006) directions, including separation of investigation from law and order duties and Police Complaints Authorities.
- Training and data: Train EMs on constitutional rights, and publish data on the use of preventive sections to track misuse.
Preventive powers exist to stop violence before it happens, not to stop speech before it is spoken. The line between keeping peace and silencing dissent must be drawn by an independent judge, not by the same hand that makes the arrest.
Practice MCQ
Q1. Consider the following statements regarding Executive Magistrates under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023:
1. A police officer of the rank of Superintendent of Police or equivalent can be appointed as a Special Executive Magistrate.
2. Executive Magistrates can conduct criminal trials and convict accused persons.
3. A prohibitory order under Section 163 can be extended by the State government up to a maximum of six months.
How many of the statements given above are correct?
(a) Only one
(b) Only two
(c) All three
(d) None
Answer: (b). Statement 2 is incorrect – Executive Magistrates have only preventive and administrative powers; trials are conducted by Judicial Magistrates and Sessions Courts.
Q2. Consider the following statements:
Statement I: The Code of Criminal Procedure, 1973 took away the power of Executive Magistrates to try criminal cases.
Statement II: Article 50 of the Constitution directs the State to separate the judiciary from the executive in the public services of the State.
Which one of the following is correct in respect of the above statements?
(a) Both Statement I and Statement II are correct and Statement II explains Statement I
(b) Both Statement I and Statement II are correct but Statement II does not explain Statement I
(c) Statement I is correct but Statement II is incorrect
(d) Statement I is incorrect but Statement II is correct
Answer: (a). The CrPC, 1973 gave effect to the Directive Principle in Article 50 by separating judicial functions from executive magistrates.
Mains Practice Question
Examine the concept, appointment, and statutory powers of Special Executive Magistrates under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. How does the inclusion of senior police officers within its ambit mark a significant shift from the previous criminal procedure regime? (15 Marks / 250 Words)
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